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JOHN M. FANELLY v. COMMONWEALTH PENNSYLVANIA (12/04/80)

decided: December 4, 1980.

JOHN M. FANELLY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of John M. Fanelly, No. B-164949.

COUNSEL

Leon A. Mankowski, for petitioner.

William J. Kennedy, Assistant Attorney General, with him Richard Wagner, Chief Counsel and Harvey Bartle, III, Acting Attorney General, for respondent.

Judges Mencer, Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 55 Pa. Commw. Page 111]

This is the appeal of John M. Fanelly (appellant) from an Order of the Unemployment Compensation Board of Review (Board) which affirmed a Referee's decision denying benefits to the appellant for willful misconduct under Section 402(e) of the Pennsylvania Unemployment Compensation Law (Act).*fn1

Appellant Fanelly was employed by Acorn Associates as Director of Marketing. As of June, 1978, he had accrued six weeks vacation time. Approximately April, 1978, he was advised by his supervisor that he should arrange to use his accrued time to avoid forfeiting it. The possibility of forfeiture arose because of expected changes in the company's ownership.

[ 55 Pa. Commw. Page 112]

On June 19, 1978, appellant began his vacation. Two weeks prior to that date he had informed his supervisor that he planned to use all of his vacation time; but he had failed to indicate the specific period of time during which he expected to be absent from work. The supervisor testified that she was not made aware of appellant's intended period of vacation until the Friday before that period began, which constituted three days advance notice. It was Acorn's policy that vacation time must be approved by the company at least two weeks in advance.

Fanelly returned to work on June 22, 1978, for a previously-scheduled meeting. The meeting was attended by the appellant, his supervisor, and the owner of Acorn Associates, George Welsh. At the meeting the appellant's vacation was discussed. The record is confusing as to what was resolved at this meeting; it is the employer's position that Fanelly was informed that his vacation had not been approved in advance as required by standing policy. The employer also maintains that Welsh suggested to the appellant that he revise his vacation plans to allow for the responsibilities of his position as Acorn's Director of Marketing. Fanelly refused to do so.

Immediately following this meeting, Fanelly received a letter from his supervisor notifying him that he had been terminated because of his attitude and behavior during the dispute over his vacation. Thereafter he applied for Unemployment Compensation benefits and his application was denied by the Bureau of Employment Security (Bureau) on the grounds of willful misconduct. He appealed the Bureau's decision and it was upheld by a Referee after a hearing. Fanelly appealed the Referee's decision to the Board, which affirmed the Referee. Appellant brings this appeal from the Board's Order affirming the Referee's decision.

[ 55 Pa. Commw. Page 113]

It is well established that taking an unauthorized vacation when directed not to do so constitutes willful misconduct under Section 402(e) of the Act. McAlister v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 376, 395 A.2d 660 (1978). This Court has consistently so held when confronted with this issue. McAlister, supra; Adams v. Unemployment Compensation Board of Review, 30 Pa. Commonwealth Ct. 500, 373 A.2d 1383 ...


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